In a recent NSW case two companies entered a contract of sale for land at an estimated value of almost $2 million. The Seller issued a notice to complete to the buyer for 17 February 2015 specifying that time was of the essence. Due to the fact that the buyer issued the seller with an incorrect form of transfer of the property, the seller could not execute as a company and instead the director executed the transfer in their personal capacity. At settlement on 16 February 2015, the buyer’s agent indicated that the transfer had not been executed properly and consequently settlement was rescheduled for the following day. The Seller’s mortgagee later indicated that settlement would not be effected due to internal policy that necessitated 3 business days to reschedule settlement. The buyer remained ‘ready willing and able’ to complete settlement. On 26 February 2019 the seller served on the buyer a notice of termination, terminating the contract and indicating that the 10% deposit paid by the buyer was forfeited. The buyer commenced proceedings against the seller in order to recover the deposit. The Court held that due to the fact that the seller was not in a position to settle at the specified notice of completion date, they should have withdrawn its notice to complete. Consequently the buyer was able to recover their deposit.

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